"Investor-State
Dispute Settlement establishes a de-facto private, parallel and supranational legal
system, accessible only to foreign investors – the decisions of which could be
imposed on national and European courts, including the European Court of
Justice! Moreover, the ISDS is marked by the opacity
of its procedures and its decisions, high costs (from $5 to $10 million [per
case] on average), no possibility of appeal and conflicts of interest: there
are about 15 lawyers in the world who alternatively act as 'arbiters' and as legal
counsel for companies, and who have already participated in more than half of
all such disputes."

ISDS
allows a foreign investor to sue a state before an international tribunal rather
than a court of national jurisdiction if it considers that the state took a
decision that has adversely impacted its business. The investor may demand
financial compensation, including for "infringements" on present and
future unrealized profits.

Initially designed to protect investments in countries where
the rule of law or legal systems were deficient, the ISDS has become a powerful
tool for contesting legislation on the environment, public health, the rights
of consumers or workers and to prevent the adoption of new legislation.

The most illustrative case of this is the attack
by Philip Morris International in Australia after the adoption of a public
health law introducing unmarked packaging for cigarettes. Several countries planning
to adopt similar laws are waiting to see if the cigarette maker will obtain the
billions of dollars on compensation it is demanding and which Australian
taxpayers would be called on to pay. This is because the firms' objectives are
to pose a permanent threat of
appeal and financial compensation to keep legislation like this, which is
contrary to their interests, from ever being introduced

Opaque procedures and decisions

The ISDS is an opaque and biased
mechanism that weakens our legal systems.

It establishes a de-facto private, parallel and
supranational legal system, accessible only to foreign investors – the
decisions of which could be imposed on national and European courts, including
the European Court of Justice! Moreover, the ISDS is marked
by the opacity of its procedures and its decisions, high costs (from $5 to $10 million
[per case] on average), no possibility of appeal and conflicts of interest: there
are about 15 lawyers in the world who alternatively act as "arbiters"
and as legal counsel for companies, and who have already participated in more
than half of all such disputes.

ISDS cannot be justified

It is routine for investors to be able to appeal decisions they
feel victimized by before a court. On both sides of the Atlantic, however, very
strong legal systems already permit such appeals and adequately protect investments.
Several studies, including by the World Bank and OECD, have concluded that ISDS is not a factor in boosting investment.

ISDS threatens democracy

We think that ISDS constitutes an
unacceptable transfer of democratic sovereignty to private interests. ISDS is a direct threat to the capacity of communities, states
or federal institutions to legislate. In this way, the Vattenfall Group sued Germany and demanded €4.7 billion
(almost $5 billion) of compensation forBerlin's decision to abandon nuclear power after the Fukushima disaster.

In the digital sector, almost all legislation is developing
and evolving. ISDS would reinforce the ultra-dominant
position of American players and their rules (notably on data protection and
taxation) over a rapidly-expanding European market.

It's the same in tax matters. If at the end of its investigation,
the European Commission rules illegal the preferential tax concessions enjoyed
in particular by Starbucks in The Netherlands and Apple in Ireland, it could, under
European law, require these companies to reimburse the "injured"
countries for losses of tax revenue. Thanks to ISDS, such
companies could find themselves reimbursed by the same amount for violating
their interests and "legitimate expectations." In other words, this
type of jurisdiction would render European law ineffective.

A growing dispute

On both sides of the Atlantic, large numbers of lawyers,
economists, think tanks and research centers (such as Jacques Delors of Notre Europe, The Cato
Institute, The European Council for International Relations), trade unions
(including the European Confederation of Trade Unions), and organizations of civil
society, business and small-medium enterprise groups, local authorities and
parliaments have all expressed strong reservations about ISDS.

Posted By Worldmeets.US

Ninety
seven percent of the 150,000 citizens who participated in public
consultations on ISDS organized by the European Commission rejected
it. Obviously, a transatlantic ISDS would give this mechanism a basis far beyond
anything seen before as it would involve more than 75 percent of all
multinational companies.

Reforms are being discussed, but they will do nothing to
change the profound nature of a private and parallel arbitration tribunal which
would take precedence over national jurisdictions defined by the Constitution.
We reject such a threat which would deprive our democratic institutions the
capacity to define and protect the public interest. Alternatives are being
studied that notably bear on the construction of a global "public" jurisdiction.
These proposals should inform ongoing negotiations in order to drive balanced
and democratic multilateral rules for investment. The European Union must
promote such an institution.

That is why, fully in line with resolutions passed in the [French]
National Assembly and Senate, we ask the French government to declare, vis-a-vis public opinion, and to
strongly defend at the heart of the European Council, a clear and firm position
of rejection of any ISDS in the trade agreements
negotiated with Canada and the United States.